V. Disproportionate Sentences

Sentences in terrorism and terrorism-related cases vary
considerably. In the 494 terrorism and terrorism-related prosecutions we
reviewed based on Department of Justice data, defendants who went to trial
received a median sentence of 11.3 years, while those who took plea agreements received
a median sentence of 3.2 years. More than one-third of those who took a plea
deal received either no prison sentence or a sentence of time served.[546]

However, 91 defendants received sentences of 15 years or more,
including 19 life sentences (which, in the federal system, means life without
the possibility of parole).[547] Over
one in ten of defendants who were convicted by trial received a life sentence.[548]
In many of the cases we documented, these lengthy sentences appeared
disproportionate to the underlying offense.

Lengthy sentences violate international human rights law and
US constitutional law when they are grossly disproportionate to the offense
committed and the individual’s culpability.[549]
Both US and international human rights jurisprudence on sentencing emphasize
the importance of a judicial determination based upon individualized
consideration of the defendant.[550]

Disproportionate sentences are a pervasive problem in the US
criminal justice system, as Human Rights Watch has documented in various
contexts.[551] Under
federal law, sentences should be no longer than necessary to further the
purposes of punishment.[552] In the
terrorism context, disproportionate sentences can occur due to the use of “terrorism
adjustments” which may be based on allegations of terrorist involvement
that are not proven in a criminal trial.

The “Terrorism Adjustment”

Federal judges making sentencing determinations for any
federal crime are to take into account as a starting point the guidelines
issued by the US Sentencing Commission. Because the guidelines are advisory,
judges may depart from the sentencing ranges they establish to lengthen or
reduce sentences.[553] By
statute they must consider a range of factors in sentencing, including the
individual characteristics of the defendant and the purposes of sentencing as
applied to a particular case.[554]

The sentencing guidelines establish sentencing ranges based
on a matrix, which cross-references 43 “offense levels” with six
“criminal history” categories.[555] For
example, the offense level for homicide is the highest, 43, while involuntary
manslaughter starts at level 12.[556] The guidelines
also contain “adjustments” based on qualities of the offense, the
offender, or the victim. These adjustments have the effect of raising, and in
some cases lowering, the offense level or criminal history category level. [557]

Among all of the adjustments in the federal sentencing
guidelines system, the terrorism adjustment has the most drastic effect of
lengthening sentences, and it stands out for applying across a wide range of
conduct.[558] (The
history of the adjustment is briefly explained below.) The adjustment raises
the offense level by 12, and if the resulting offense level is less than 32, it
creates a minimum offense level of 32—regardless of the character of the
actual crime. It also automatically raises a defendant’s criminal history
level to category 6, the highest category, regardless of the defendant’s
actual criminal history.[559] As one
judge in a terrorism case put it, the effect is to “impute to a defendant
who has had no criminal history a fictional history of the highest level of
seriousness.”[560]

The government has successfully sought the terrorism
adjustment for 259 individuals since 2002, the first year statistics are
available. In 2012, the adjustment applied to 46 defendants, while in previous
years, it applied to an average of 28 cases per year, according to our
calculations based on information publicly available on the US Sentencing
Commission website.[561]

In real terms, application of the terrorism adjustment
results in an absolute minimum sentence of 17.5 years for an offense (unless
the offense carries a lesser statutory maximum). On its own, an increase of 12
offense levels can add as much as 20 years to a sentence, while a jump to the
highest criminal history categorization can also add several years to a
sentence. Taken together, the two aspects of the terrorism adjustment have the
potential to add 30 years to a sentence or lead to life imprisonment for a
crime that, without the adjustment, might otherwise entail only a sentence of
five years.[562]

In addition, mandatory minimum sentences require judges to
impose specified minimum prison terms. Created by various federal statutes,
mandatory minimum sentences are typically triggered by aspects of criminal
offense conduct or a defendant’s criminal history, and result in longer
sentences.[563] As
Human Rights Watch has reported in the past, mandatory minimums are one of the
most significant obstacles to fair sentencing in the criminal justice system.[564]

Lengthy Sentences Based
on Unproven Conduct

Under the federal sentencing system, sentences are not
limited to the conduct for which an individual was charged or convicted but
rather are based on a court’s determination of a defendant’s
“actual conduct.”[565] As a
result, an individual’s sentence may be dramatically lengthened based on
accusations of conduct that were not assessed by a jury, let alone determined
beyond a reasonable doubt. (Mandatory minimum cases are a recent exception.)[566]
Although this sentencing scheme has been upheld by the Supreme Court,[567]
it raises due process concerns particularly in the context of the terrorism
adjustment, where the potential for government abuse—making inflammatory
suggestions of a terrorism connection, invoking secrecy to explain evidentiary
gaps—is too high, and the cost of a vastly lengthened sentence is too
great.

For example, Abdelhaleem Ashqar was sentenced to about 11
years (135 months) for obstruction of justice and criminal contempt, after he
refused to testify before a grand jury (see section IV). These offenses usually
carry sentences of five years or less, but after the trial and during the sentencing
stage the prosecution asserted Ashqar had “engaged in numerous violations
of federal law”—offenses that it had not charged or convicted him
on—“all in the service of a terrorist organization.”[568]
It asserted that Ashqar’s refusal to testify before a grand jury was
likewise “in the service” of a terrorist organization, although
this question was never put to a jury.[569]

To punish defendants for conduct that was not alleged or
proven at trial deprives them of the opportunity to fully develop the facts and
evidence necessary to refute accusations of terrorist connection or
affiliation. Moreover, it creates perverse incentives for the government, which
can charge lesser conduct that is easier to establish at trial, and then invoke
inflammatory allegations of terrorist connection at the sentencing stage.[570]

Lengthy Sentences Based
on Non-Violent Conduct

When the terrorism adjustment was first introduced in 1994,
it applied to a relatively small category of offenses: any felony that
“involves or is intended to promote international terrorism” if the
felony did not already involve terrorism as an element of the crime.[571]
However, in April 1996—in a law passed in response to the 1995 Oklahoma
City bombing—Congress directed the US Sentencing Commission to expand the
terrorism adjustment to apply domestically, without requiring an international
nexus.[572]

Today, the terrorism adjustment applies to any
“federal crime of terrorism”—a category that is defined
expansively by statute. Accordingly, the terrorism adjustment may apply as much
to violent offenses—such as using weapons of mass destruction and missile
systems designed to destroy aircraft—as it does to non-violent offenses
such as engaging in financial transactions with a country supporting
international terrorism. Indeed, between 2006 and 2011, 46 of the terrorism
adjustments applied were for material support to a foreign terrorist
organization, according to information publicly available on the US Sentencing
Commission website.

In the Holy Land Foundation case, Shukri Abu Baker was
convicted of conspiracy to provide material support and providing material
support (see sections III and V)—charges that each carry a statutory
maximum of 15 years. Yet Baker was sentenced to 65 years in prison based on a
terrorism adjustment.[573] The
government did not allege that the Holy Land Foundation or Baker was involved
in violent activity of any kind, or that Baker or the organization ever
provided money directly to a terrorist organization. Instead, the allegations
were that by contributing to charitable work in the Occupied Palestinian
Territories, the Holy Land Foundation helped Hamas gain supporters among the
civilian population. Though Baker had no criminal history whatsoever, his
sentence was based on a criminal history level equal to that of someone who had
been convicted of second-degree murder.[574]

After Sabri Benkahla was acquitted of charges that he had
attended a terrorist training camp and fired weapons there, he was questioned
by the FBI and subpoenaed to testify before a grand jury on the same matter.
The government then launched a second prosecution, charging that Benkahla had
lied to the FBI and a grand jury by denying his personal involvement and
knowledge of acquaintances’ involvement in training camps. After a second
trial, Benkahla was convicted of obstructing justice on account of false
declarations to a grand jury and of making false statements to the FBI. Though
the judge reasoned that Benkahla’s false declarations “neither
directly ‘involved’ nor were ‘intended to promote’ a
federal crime of terrorism,” he applied the terrorism adjustment, reasoning
that the false declarations had actually obstructed the FBI’s
investigation of a terrorism crime.[575]
Without the adjustment, Benkahla faced a sentence of two and three-quarters to
three and a half years (33 to 41 months). With it, he faced a sentence of about
17 to 22 years (210 to 262 months)—the same or worse sentence as
defendants who committed “more severe, violent offenses,” like the
kind of which Benkahla was acquitted in his first trial.[576]

Judges have the discretion to “depart downward”
from sentences that the Guidelines recommend, but even where they exercise
their discretion, the terrorism adjustment drives up the length of sentences
significantly. In Benkahla’s case, the judge concluded the likelihood he
would commit another crime was “infinitesimal,” and he sentenced
Benkahla to 10 years. Yet this was still almost seven years more than Benkahla
would have faced without the terrorism adjustment.[577]

Lengthy Sentences in
Informant Cases

In some of the cases we reviewed involving informants,
defendants received particularly harsh sentences based on elements of the
crimes that informants suggested.

The Newburgh Four case (see section II) is perhaps the most
egregious example. The informant in the case introduced the idea of attacking
Stewart Air Force Base with a Stinger missile and provided the fake missile to
the defendants. As District Judge Colleen McMahon explained:

There is no way that these four defendants would have
dreamed up the idea of shooting a Stinger missile at an airplane or anything
else; there is certainly no way they could have acquired a Stinger missile,
operative or inert, unless the government provided them one.[578]

Without the Stinger missile, the government could still have
sought life imprisonment for the defendants based on other aspects of the case;
however, the men would have been eligible for a judge’s discretionary
reduction in sentence length. The Stinger missile element enabled the
government to use a mandatory minimum sentence to ensure that if convicted, the
defendants would receive at least 25 years.[579] The
judge concluded that she had no discretion to sentence the defendants to
anything less, though she expressed concern that “the only reason the
Government introduced the missile element into this case was to prohibit me
from sentencing the defendants to less time than that.”[580]

The terrorism adjustment can result in individuals charged
with conspiracy and attempts receiving the same sentences imposed for actual
commission of murder.[581] This
outcome is of particular concern especially where the defendants did not
propose the conduct that served as the basis for the terrorism adjustment, as
in the case of the three Duka brothers, who were sentenced to life imprisonment
in the Fort Dix Five case (see section II), based on a fake plot negotiated in
conversations held in Arabic between one of the informants and the co-defendant
Mohammed Shnewer; the Duka brothers, who spoke English and Albanian alone and
did not understand Arabic, were not included in any discussions about a plot.[582]
The Dukas were convicted of one count of conspiracy to commit murder and three
counts of illegal possession of firearms. Conspiracy to murder, without the
terrorism adjustment, carries a sentence ranging between 12 ¾ years to
24 ½ years (135 months to 293 months), depending on the
defendant’s criminal history, but with the terrorism adjustment the guidelines
recommend the same sentence that first-degree (premeditated) murder carries:
life imprisonment.[583] The
Duka brothers were in their 20s at the time of their sentence; without the
adjustment, they would have been middle-aged men at the time of their release,
while with it they will spend perhaps as much as 60 years in prison, and die
there.

[549] Under
international human rights law, the “essential aim” of a
penitentiary system should be the “reformation and social
rehabilitation” of prisoners, and sentencing that is solely retributory
is disfavored. See ICCPR, art.10(3) (“The penitentiary system shall
comprise treatment of prisoners the essential aim of which shall be their
reformation and social rehabilitation.”); UN Human Rights Committee,
General Comment 21, Replaces general comment 9 concerning human treatment of
persons deprived of liberty (Art. 10) (Annex VI, B) (Forty-fourth Session,
1992), Compilation of General Comments and General Recommendations Adopted by
Human Rights Treaty Bodies, UN Doc. HRI/GEN/1/Rev.9 (Vol.1) (1994), http://ccprcentre.org/doc/ICCPR/General%20Comments/HRI.GEN.1.Rev.9%28Vol.I%29_%28GC21%29_en.pdf
(accessed June 20, 2014), para. 10. (“No penitentiary system should be
only retributory; it should essentially seek the reformation and social
rehabilitation of the prisoner”). Excessive punishment may constitute
cruel, inhuman, or degrading punishment in violation of the ICCPR and the
Convention against Torture, and it may constitute arbitrary deprivation of
liberty in violation of the right to liberty. See
ICCPR, arts. 7 and 9; Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment (Convention against Torture), adopted
December 10, 1984, G.A. res. 39/46, annex, 39 U.N. GAOR Supp. (No. 51) at 197,
U.N. Doc. A/39/51 (1984), entered into force June 22, 2006, art.16; see also,
Dirk van Zyl Smit and Andrew Ashworth, “Disproportionate Sentences as
Human Right Violations,” Modern Law Review, vol. 67, no. 4 (July
2004), p. 543; Roper v. Simmons, 543 U.S. 551, 572 (2005).

[553]
Congress created the US Sentencing Commission (USSC) in 1984 and authorized it
to promulgate mandatory guidelines, with the aim of reducing “unwarranted
sentencing disparities.” Sentencing Reform Act of 1984, 28 U.S.C. §
991. A 2005 Supreme Court case made the guidelines advisory. United States v.
Booker, 543 US 220 (2005).

[556]
In addition, mandatory minimum sentences require judges to impose specified
minimum prison terms. Created by various federal statutes, mandatory minimum
sentences are typically triggered by aspects of criminal offense conduct or a
defendant’s criminal history, and result in longer sentences.USSC,
“2012 Federal Sentencing Guidelines Manual,”
http://www.ussc.gov/sites/default/files/pdf/guidelines-manual/2012/manual-pdf/2012_Guidelines_Manual_Full.pdf,
chapter 1 or 2. Taking into regard criminal history, first-time offenders have
a criminal history level of 1, which increases to 2 to 6 usually depending upon
the number, duration, and nature of previous sentences.Ibid., chapter 4.

[558]
All other independent enhancements set forth in chapter 3 (the
“Adjustments” chapter) of the Guidelines (that is, enhancements
that are not tied to any particular offense, but rather may be applied to any
of them) entail an increase of only 1 to 5 levels. Though some specific
offenses also involve upward adjustments, none exceeds the severity of the
terrorism enhancement since it increases both the offense level increase and
criminal history category assignment. See generally, USSC, “2012 Federal
Sentencing Guidelines Manual,”
http://www.ussc.gov/sites/default/files/pdf/guidelines-manual/2012/manual-pdf/2012_Guidelines_Manual_Full.pdf,
chapter 3. All other independent enhancements set forth in chapter 3 (the
“Adjustments” chapter) of the Guidelines entail an increase of only
1 to 5 levels. Though some specific offenses also involve upward adjustments,
none exceeds the severity of the terrorism enhancement since it increases both
the offense level increase and criminal history category assignment.

[561]
This average is based on the years 2007 to 2011, including 2008 when it was
applied only 11 times. Between 2002 and 2006, the adjustment was applied to
between 8 and 13 cases per year, with the exception of 2004 when it applied to
22 cases. Human Rights Watch analysis of United States Sentencing Commission
Federal Sentencing Statistics,
http://www.ussc.gov/Research_and_Statistics/index.cfm (accessed June 29, 2014).

[562] For
example, Stanislas Gregory Meyerhoff, an environmental activist who was charged
with conspiracy to commit arson and destroy an energy facility, faced a
sentence of 70 to 87 months without imprisonment; with the terrorism adjustment
it “leaps to 30 years to life imprisonment.” Defendant’s
Memorandum of Law in Opposition to Application of the Terrorism Enhancement,
United States v. Meyerhoff, No. 6:06-cr-60078 (D. Or. June 2, 2014).

[566]
However, in 2013, the Supreme Court held that in mandatory minimum cases, any
fact that increases a mandatory minimum is an “element” of the
crime that must be submitted to the jury. See Alleyne v. United States, 133
S.Ct. 2151 (2013).

[567]
In Booker v. US, the Supreme Court held that mandatory sentencing
guidelines were unconstitutional where they imposed punishment for conduct without
proof to a jury beyond a reasonable doubt. However, the Court’s remedy
was not to bar the use of non-proven conduct; rather, it was to make the
guidelines advisory. See Booker v. United States, 543 U.S. 220, 243-44 (2005).
See also, United States v. Battle, 499 F.3d 315, 322-23 (4th Cir. 2007)
(“When applying the Guidelines in an advisory manner, the district court
can make factual findings using the preponderance of the evidence
standard.”).

[570]
See Kate Stith, "The Arc of the Pendulum: Judges, Prosecutors, and the
Exercise of Discretion," Yale Law Journal, vol. 117 (2008), p. 1479
(noting that where prosecutors do not have to have prove the facts that are the
basis for enhancements, they have less incentive to exercise discretion by
agreeing to a plea and sentence bargain more favorable to defendants); James P.
McLoughlin, "Deconstructing United States Sentencing Guidelines Section
3A1.4: Sentencing Failure in Cases of Financial Support for Foreign Terrorist
Organizations," Law and Inequality, vol. 28, no. 1 (2010), p. 93
(the enhancements give prosecutors "overwhelming leverage" over
defendants). Human Rights Watch has previously reported on how prosecutors use
the threat of sentencing enhancements to obtain pleas. See Human Rights Watch, An
Offer You Can't Refuse.

[571]
See USSC, “Appendix C (Volume I) - Amendments to the Guidelines
Manual,” November 1, 2003, http://www.ussc.gov/sites/default/files/pdf/guidelines-manual/2011/manual-pdf/Appendix_C_Vol_I.pdf
(accessed June 26, 2014), amendment 526; Violent Crime Control and Law
Enforcement Act of 1994, Pub.L. 103-322 (1994), sec. 120004 (“The United States Sentencing Commission is directed to
amend its sentencing guidelines to provide an appropriate enhancement for any
felony, whether committed within or outside the United States, that involves or
is intended to promote international terrorism, unless such involvement or
intent is itself an element of the crime.”). Prior to 1994, the Sentencing Guidelines did not
include an enhancement for conduct relating to terrorism offenses. Instead, the
Guidelines included a policy statement that provided: “If the defendant
committed the offense in furtherance of a terroristic action, the court may
increase the sentence above the authorized guideline range.” See
USSC, “1994 Federal Sentencing Guidelines Manual,” November 1,
1994,
http://www.ussc.gov/guidelines-manual/1994-federal-sentencing-guidelines-manual
(accessed June 26, 2014), § 5K2.15.

[572]
See USSC, “Appendix C (Volume I) - Amendments to the Guidelines
Manual,” http://www.ussc.gov/sites/default/files/pdf/guidelines-manual/2011/manual-pdf/Appendix_C_Vol_I.pdf,
amendment 539; Antiterrorism and Effective Death
Penalty Act of 1996, Pub.L. p. 104-132, sec. 730 (“The United
States Sentencing Commission shall forthwith, in accordance with the procedures
set forth in section 21(a) of the Sentencing Act of 1987, as though the
authority under that section had not expired, amend the sentencing guidelines
so that the chapter 3 adjustment relating to international terrorism only
applies to Federal crimes of terrorism, as defined in section 2332b(g) of title
18, United States Code.”); 18 U.S.C. Ch. 113B (defining “federal
crime of terrorism”); see also, 18 U.S.C. § 2332B(g)(5) (defining
other offenses as federal crimes of terrorism when those acts are
“calculated to influence or affect the conduct of government by
intimidation or coercion, or to retaliate against government conduct”).

[574]
USSC, “2012 Federal Sentencing Guidelines Manual,”
http://www.ussc.gov/sites/default/files/pdf/guidelines-manual/2012/manual-pdf/2012_Guidelines_Manual_Full.pdf,
§§2A1.2, 2M5.3. The base offense level for second-degree murder is
38. The base offense level for providing material support to a foreign
terrorist organization is 26 and with the terrorism enhancement, becomes 38.
Instead of starting in a potential range of 63 to 78 months, the terrorism
enhancement automatically placed him within a base range (not taking into account
another form of upward departure) of 235 to 293 months. Ibid., p. 394
(Sentencing Table).

[575] The
judge speculated that Benkahla “may have been motivated out of a desire
not to be seen as involved with illegal activities” or “have been
concerned about potential hardship he might cause others.”United States v. Benkahla, 501 F.Supp.2d 748, 751,
759-61 (E.D. Va. 2007), aff’d, 500 F.3d 300 (4th Cir. 2008).

[581]
Since 2006, courts have applied the terrorism adjustment to 28 attempt or
conspiracy to murder cases, compared to just eight cases of first-degree
murder, compared according to statistics we calculated based on information
publicly available on the US Sentencing Commission website. See USSC Research
and Federal Sentencing Statistics,
http://www.ussc.gov/Research_and_Statistics/index.cfm (accessed June 28, 2014).

[582] The
Arabic-speaking informant, Mahmoud Omar, testified at trial that two of the
brothers “have nothing to do with the matter,” that is, that they
had no knowledge of any plot. Trial Transcript at 3289, United States v.
Shnewer, No. 1:07-cr-00459-RBK (D.N.J. Apr. 29, 2009), aff’d in part,
rev’d in partsub nom. United States v. Duka, 671 F.3d 329 (3d
Cir. 2011) (No. 09-2292, 09-2299, 09-2300, 09-2301, 09-2302).

[583] The base
offense level for conspiracy to commit murder is 33, and the resulting sentence
could have been anywhere from 135 months, with the lowest criminal history
category, to 293 months with the highest criminal history category. Due to the
terrorism adjustment, the Duka brothers’ criminal history category levels
were raised to the highest criminal history category level and the offense
level was raised 12 levels, to the highest level of 43, the same base offense
level as first degree murder. See USSC, “2012 Federal Sentencing
Guidelines Manual,”
http://www.ussc.gov/sites/default/files/pdf/guidelines-manual/2012/manual-pdf/2012_Guidelines_Manual_Full.pdf,
p. 394 (Sentencing Table).